COMMUNIW  FINES  AND  COLLECTIVE  RESPONSIBILITY 


(Being  ParuXIII  of  Some  Questions  of  International  Law  in  the  European  War, 
continued  from  previous  numbers  of  the  Journal.), 

The  thepry  of  collective  responsibility  for  offenses  committed  by 
the  civil  population  of  occupied  districts  against  the  authority  of  the 
occupying  belligerent  has  been  interpreted  in  a  wider  sense  and  applied 
on  a  pore  extensive  scale  by  German  military  commanders  during 
the  present  war  than  was  ever  done  in  any  war  of  the  past.  The  punish¬ 
ment  imposed  in  the  application  of  the  theory  have  been  unprecedented 
in  number,  sometimes  novel  in  form  and  often  excessive  in  character. 
TWy  have  consisted  of  pecuniary  fines,  either  direct  or  under  the  guise 
of  .  ontributions,  the  seizure  and  shooting  of  hostages,  the  burning  of 
tor/ns  and  villages,  the  destruction  of  private  houses,  the  deportation 
of  the  civil  population,  the  commercial  isolation  of  refractory  towns, 
fyhe  interdiction  of  public  charitable  relief  to  the  unemployed,  the  con¬ 
finement  of  the  inhabitants  within  doors  for  certain  periods,  and  the 
Hike.1  It  is  the  main  purpose  of  this  paper  to  review  German  theory 
and  practice  in  respect  to  the  first  mentioned  of  these  punitive  expedients. 

As  a  general  principle,  the  right  of  a  military  occupant  to  impose, 
under  certain  conditions,  pecuniary  and  other  punishments  upon  occu¬ 
pied  districts,  for  acts  committed  by  the  civil  population  against  his 
authority,  has  long  been  recognized  and  acted  upon  in  practice.  Among 
the  earlier  instances  of  a  resort  to  such  a  measure  was  the  action  of 
Napoleon,  who,  during  his  occupation  of  Lombardy  in  1796,  announced 
that  any  district  under  his  occupation,  in  which  firearms  were  found 
in  possession  of  the  inhabitants,  should  be  liable  to  a  fine  equal  to  one- 
third  its  revenue  (presumably  the  annual  revenue).2  A  like  penalty 

1  Some  instances  in  which  the  three  last  mentioned  expedients  have  been 
resorted  to  by  the  Germans  in  the  present  war  were  considered  in  my  article  on 
“Contributions,  Requisitions  and  Compulsory  Service  in  occupied  Territory”  in  the 
January  number,  1917,  of  this  Journal,  especially  pp.  104  ff. 

2  Hall,  International  Law,  4th  ed.,  p.  492. 

511 


THE  AMERICAN  JOURNAL  OF  INTERNATIONA 


512 


was  threatened  against  any  village  in  which  a  French  sJ^^^had  been 
killed,  unless  the  individual  perpetrator  of  the  crime  Aval^rrested  and 
delivered  up  to  the  local  authorities.3  ^ 

It  was  not  until  the  Franco-German  War  of  1870-71,  however, 
that  the  theory  of  collective  responsibility  was  applied  c>n  an  extensile 
scale  and  interpreted  to  cover  offenses  for  which  the  population  pun¬ 
ished  could  not  have  been  justly  held  responsible.  In  August,  1870, 
a  general  order  was  issued  by  the  Prussian  military  authorities  decree¬ 
ing  that  French  communes  in  which  hostile  acts  were  committed  against 
their  authority  by  persons  not  belonging  to  the  French  army  should 
be  liable  to  a  fine  equal  to  the  amount  of  the  local  land  tax,  and  that 


those  communes  from  which  individual  offenders  came  should  be 
liable  to  the  same  punishment.4  In  October  of  the  same  year  it  was 
announced  that  communes  in  which  damage  was  done  to  railways, 
bridges,  canals  and  telegraph  lines,  even  when  the  mischief  was  wrought 
by  others  than  the  local  inhabitants  and  without  their  knowledge  and 
connivance,  should  be  held  responsible  for  such  acts.5 

These  announcements  turned  out  to  be  more  than  empty  threats, 
for  in  fact  huge  fines  were  imposed  and  collected  in  many  instances. 
Thus  Lorraine,  in  addition  to  other  penalties,  was  fined  10,000,1 1)0 
francs  for  the  destruction  of  a  bridge  with  the  alleged  connivance  of 
the  inhabitants.6  In  June,  1871,  the  village  of  Bray  was  fined  37,500 
francs  and  hostages  were  taken  to  insure  the  payment  of  the  fine.7 
Combles  was  required  to  pay  325,000  francs  for  an  offense  not  men¬ 
tioned  in  the  accounts,  and  Driencourt  was  assessed  1000  francs  be¬ 
cause  a  stranger  was  found  in  the  village.8  The  commune  of  Launois 

3  Hall,  International  Law,  4th  ed.  p.  491. 

4  Concerning  this  order  see  Bonfils,  Droit  International,  sec.  1219;  Calvo, 

Droit  International,  sec.  2236;  Spaight,  War  Rights  on  Land,  pp.  408-409;  Meri- 
gnhac,  Lois  et  Coutumes  de  la  Guerre  sur  Terre,  sec.  106;  Nys,  Droit  International, 
Vol.  Ill,  p.  429;  Despagnet,  Cours  de  Droit  International,  sec.  589;  Bluntschli,  Droit 
Int.  Cod.,  sec.  643  bis.  The  text  of  the  above  mentioned  order  may  be  found  in  the 
Revue  de  Droit  International  et  de  Leg.  Comp.,  Vol.  II,  p.  666;  see  the  defense  of  this 
order,  by  Loening,  ibid.,  Vol.  V,  p.  77. 

6  Edwards,  The  Germans  in  France,  pp.  76,  211. 

6  Edmonds  and  Oppenheim,  The  Laws  and  Usages  of  War  in  the  British  Manual 
of  Military  Law  (ed.  of  1914),  p.  305. 

7  Pradier-Foder6,  Traite  de  Droit  lnt.,  Vol.  VII,  p.  281. 


8  Ibid.,  p.  279. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


513 


was  forced  to  pay  10,000  francs  to  the  families  of  two  Prussian  dragoons 
who  were  alleged  to  have  been  killed  by  francs-tireurs. 9  Chatillon  was 
fined  1,000,000  francs  for  the  destruction  of  a  bridge  10 ;  Etamps,  40,000 
francs  for  the  cutting  of  a  telegraph  wire  11 ;  Orleans,  600,000  francs  on 
account  of  the  killing  of  a  Prussian  soldier  by  an  unknown  person  dur¬ 
ing  an  altercation  between  himself  and  the  soldier.12  St.  Germain  was 
given  the  option  of  paying  a  fine  of  100,000  francs  or  of  being  burned 
because  three  German  dragoons  had  disappeared  from  the  community. 

In  some  instances  impositions  were  levied  which  in  form  and  pretext 
were  fines,  but  which  in  reality  were  contributions  in  disguise.  The 
enormity  of  the  amounts  and  their  disproportion  to  the  offenses  alleged 
would  seem  to  leave  no  doubt  as  to  this.13  Thus,  the  Department  of 
the  Seine  was  assessed  24,000,000  francs  and  Rouen  was  required  to 
raise  6,500,000  francs  within  five  days.14  The  Departments  of  Aisne, 
Ardennes  and  Aube  were  compelled  to  pay  3,000,000  francs  as  a  punish¬ 
ment  for  the  action  of  the  French  in  taking  as  prisoners  of  war  the  crews 
of  captured  German  merchant  vessels  and  for  expelling  Germans  from 
France.  The  Departments  of  Meurthe,  Meuse  and  Seine-et-Marne 
were  assessed  2,755,253  francs  on  the  same  account.15  A  contribution, 
which  was  intended  as  a  punitive  measure,  was  the  levy  in  December, 
1870,  of  25  francs  per  capita  on  the  inhabitants  of  all  the  occupied 
districts  of  France  with  the  avowed  purpose  of  breaking  the  resistance 
of  the  French  people  and  of  inducing  them  to  sue  for  peace.16 

9  Spaight,  op.  cit.,  p.  409. 

10  Bonfils,  op.  cit.,  sec.  1219;  Ferrand,  Des  Requisitions,  p.  239,  and  Guelle, 
Precis  des  Lois  de  la  Guerre,  Vol.  II,  p.  221.  Guelle  states  that  the  village  of  Ham  was 
fined  25,000  francs  because  the  fortress  was  retaken  from  the  Germans  by  a  detach¬ 
ment  of  regular  French  troops.  See  also  Latifi,  Effects  of  War  on  Private  Property, 
p.  34,  and  Rouard  de  Card,  La  Guerre  Continentale,  p.  178. 

11  Guelle,  p.  221. 

12  Bonfils,  op.  cit.,  sec.  1219,  and  Depambour,  U Occupation  en  Temps  de  Guerre, 

p.  119.  13  Compare  Guelle,  Vol.  II,  p.  221. 

14  Depambour,  p.  119,  and  Rouard  de  Card,  p.  178. 

16  Calvo,  op.  cit.,  Vol.  IV,  sec.  2236.  Bismarck  considered  the  action  of  the 
French  to  be  a  violation  of  international  law,  but  as  the  law  then  stood,  the  crews 
of  merchant  vessels  were  liable  to  be  treated  as  prisoners.  Compare  Edmonds 
and  Oppenheim,  in  the  British  Manual,  sec.  459,  note  b. 

16  Bonfils,  sec.  1222,  and  Ferrand,  Des  Requisitions  en  Matihre  de  Droit  Int., 
p.  221.  Other  instances  of  fines  imposed  are  mentioned  by  Andler  in  his  brochure, 


514 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


Punishments  other  than  fines  were  laid  in  some  instances.  Thus, 
when  the  railroad  bridge  over  the  Moselle  between  Nancy  and  Toul 
was  blown  up,  whether  by  civilian  inhabitants  or  French  troops  is  not 
clear,  the  town  of  Fontenoy  was  burned  by  the  Germans.17  At  Charmes 
the  town  casino  was  burned  as  a  punishment  for  the  act  of  the  inhabit¬ 
ants  in  firing  upon  the  escort  of  a  convoy  of  prisoners.18 

The  German  theory  of  collective  responsibility  was  revived  by 
Lord  Roberts  and  General  Kitchener  in  the  South  African  War,  when 
communities  were  held  responsible  and  were  punished  not  only  by 
heavy  fines  but  by  wholesale  burning  of  farms,  the  destruction  of  pri¬ 
vate  houses  and  the  imprisonment  of  the  leading  civil  inhabitants,  for 
damages  committed  upon  railway  and  telegraph  lines  by  “  small  parties 
of  raiders.”  It  is  not  clear  whether  the  offenders  were  lawful  belliger¬ 
ents  or  non-combatants;  in  the  former  case  their  acts  were  not  viola¬ 
tions  of  the  laws  of  war  and  therefore  they  were  not  legally  punishable.19 
In  any  case  the  measures  resorted  to  were  extremely  severe  and  of  very 
doubtful  expediency,  as  such  measures  always  are,  because  they  tend 
to  drive  the  enemy  to  desperation,  embitter  the  whole  population  and 
thus  retard  rather  than  hasten  the  termination  of  the  war.  Such 
measures  were  not  resorted  to  during  the  Chino-Japanese,  the  Spanish- 
American,  nor  the  Russo-Japanese  Wars,  and  apparently  not  during 
the  more  recent  Turco-Italian  and  Balkan  Wars. 

During  the  present  war  the  Germans  have,  as  already  stated,  ex¬ 
tended  the  theory  of  collective  responsibility  and  applied  it  on  a  larger 
scale  and  under  a  greater  variety  of  forms  than  was  ever  done  in  any 
previous  war.20 

Les  Usages  de  la  Guerre  et  la  Doctrine  de  VEtat-Major  AUemand,  p.  25,  and  by  Saint 
Yves,  Les  Responsabilites  de  VAllemagne  dans  La  Guerre  de  1914,  PP-  383  ff. 

17  Spaight,  p.  122,  and  Guelle,  p.  221.  Pillet  ( Le  Droit  de  la  Guerre ,  p.  236)  de¬ 
clares  that  the  bridge  was  destroyed,  not  by  civilians,  but  by  French  troops;  conse¬ 
quently  it  was  a  legitimate  act  of  warfare. 

18  Edmonds  and  Oppenheim,  op.  cit.,  p.  305,  note  b. 

19  Spaight,  p.  124;  Bordwell,  p.  150.  See  especially  the  proclamation  of  Lord 
Roberts  of  June  14,  1900,  announcing  that  houses  and  farms  in  the  vicinity  of  places 
where  damage  was  done  would  be  burned;  and  that  of  General  Maxwell  of  June  15, 
1900,  declaring  that  in  case  telegraph  wires  were  cut  or  railway  bridges  destroyed 
the  farm  nearest  the  place  where  the  act  was  committed  would  be  burned. 

20  With  a  view  to  establishing  the  liability  of  Belgian  communes  for  damages 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


515 


The  following  instances,  the  facts  regarding  which  seem  to  be  suffi¬ 
ciently  established,  illustrate  fairly  well  the  German  theory  and  practice : 

In  November,  1914,  the  city  of  Brussels  was  fined  5,000,000  francs 
by  General  von  Leutwitz  for  the  act  of  a  policeman  in  attacking  a 
German  officer  during  the  course  of  a  dispute  between  the  two,  and  for 
facilitating  the  escape  of  a  prisoner.21  In  July,  1915,  another  fine  of 
5,000,000  francs  was  reported  to  have  been  imposed  upon  Brussels  for 
the  alleged  destruction  of  a  German  Zeppelin  by  a  British  aviator  at 
Eyre  near  Brussels.22 

According  to  a  press  despatch  of  November  8,  1914,  from  The 
Hague,  the  affair  which  led  to  the  imposition  of  the  first  mentioned 

done  by  the  inhabitants  and  for  determining  the  amounts  for  which  they  should 
be  held  responsible,  the  Governor-General  of  Belgium  in  August,  1914,  revived  and 
declared  in  force  the  old  French  law  of  1795,  which  makes  the  communes  responsible 
for  damages  caused  by  riots  and  public  disorders  therein.  The  claim  of  the  Governor- 
General  to  do  this  was  based  on  the  fact  that  the  law  in  question  was  enacted  when 
what  is  now  Belgium  was  a  part  of  France  and  had  never  been  repealed  by  the 
Belgian  Parliament.  The  original  purpose  of  the  law  of  1795,  however,  was  to 
establish  the  responsibility  of  the  communes  for  damages  caused  by  riots  and  public 
disturbances  ( attroupments )  in  time  of  peace  and  not  those  caused  by  acts  of  indi¬ 
viduals  in  time  of  war  in  territory  occupied  by  the  enemy.  There  is  no  analogy, 
therefore,  between  the  responsibility  contemplated  by  the  French  law  and  that 
which  the  Governor-General  of  Belgium  sought  to  establish.  Compare  Pillet,  Le 
Droit  de  la  Guerre,  p.  235.  By  a  decree  of  July  3,  1915,  the  Governor-General 
created  in  each  province  a  special  tribunal  charged  with  the  enforcement  of  the 
earlier  decree.  The  tribunals  were  empowered  to  examine  witnesses,  employ  ex¬ 
perts,  conduct  investigations  and  to  fix  the  amount  of  the  damages  wrought,  which 
amount  was  to  be  paid  by  the  commune  to  the  provincial  treasurer  within  ten  days, 
who  was  thereupon  required  to  transmit  the  amount  to  the  parties  injured.  Text  in 
Huberich  and  Speyer,  German  Legislation  in  Belgium,  2d  series,  pp.  57-59.  On 
the  face  of  it,  the  primary  purpose  of  this  measure  was  to  provide  a  means  for  in¬ 
demnifying  the  Belgian  population,  but  it  is  not  improbable  that  it  was  also  intended 
to  provide  machinery  for  punishing  communes  for  acts  of  hostility  committed  by 
individuals  against  the  authority  of  the  occupying  forces. 

21  The  notice  imposing  the  fine  was  posted  at  Brussels,  November  1,  1914.  The 
text  may  be  found  in  various  collections  of  proclamations  issued  in  Belgium,  among 
others  the  Report  of  the  Belgium  Commission  of  Inquiry.  The  notice  states  that 
the  policeman  in  question  was  sentenced  to  imprisonment  for  a  term  of  five  years 
and  that  “The  city  of  Brussels,  excluding  suburbs,  has  been  punished  for  the  crime 
committed  by  its  policeman  De  Ryckere  against  a  German  soldier,  by  an  additional 
fine  of  five  million  francs.” 

22  The  application  of  the  principle  of  collective  responsibility  in  this  case  seems 
so  extraordinary  that  one  is  tempted  to  doubt  the  authenticity  of  the  report. 


516 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


fine  grew  out  of  the  attempt  of  the  German  military  authorities  to 
prevent  the  sale  of  “  contraband  ”  newspapers.  A  German  secret 
service  agent,  it  appears,  undertook  to  arrest  certain  Belgians  for 
selling  Dutch  newspapers  contrary  to  the  regulations;  the  latter  re¬ 
sisted  arrest  and  were  supported  by  the  policeman  in  question  who, 
it  is  alleged,  attacked  the  German  officer.  The  Brussels  municipal 
council  protested  against  the  fine,  among  other  reasons,  because  the 
military  authorities  had  not  notified  the  local  news-dealers  of  the  order 
prohibiting  the  sale  of  Dutch  newspapers,  and  because  the  persons  who 
resisted  arrest  did  not  know  that  the  secret  service  agent  Was  a  German 
officer. 

In  July,  1915,  Brussels  was  again  fined  5,000,000  marks  in  conse¬ 
quence  of  a  “ patriotic  demonstration”  by  the  inhabitants  on  July  21st, 
the  national  holiday,  the  “moderate  size  of  the  fine  imposed  being  due 
to  the  loyal  cooperation  of  the  municipal  authorities  in  preserving 
order.”  23  The  mayor  addressed  a  protest  to  the  Governor-General, 
von  Bissing,  in  which  he  denied  the  right  of  a  military  occupant  to 
punish  the  civil  population  for  manifesting  their  sentiments  of  patriot¬ 
ism  on  the  occasion  of  the  celebration  of  their  national  independence.24 

Early  in  1916  Brussels  was  fined  500,000  marks,  and  the  suburb 

23  Lieutenant-General  Hut,  German  Governor  of  Brussels,  in  a  letter  to  the 
mayor,  stated  that  the  municipal  authorities  had  given  their  approval  to  the  regula¬ 
tions  prohibiting  all  public  demonstrations,  meetings,  processions  and  display  of 
flags  on  the  fete  day  of  July  21st,  but  that  in  spite  of  this  agreement,  late  in  the 
evening  disturbances  were  created  by  the  distribution  of  tracts  urging  the  people  to 
disregard  the  regulations.  During  the  evening  Cardinal  Mercier  drove  through  the 
streets,  and  his  appearance  led  to  demonstrations  “which  were  contrary  to  the 
German  regulations  and  which  had  the  effect  of  inciting  the  people  to  rebellion  or 
foolish  deeds.”  “No  occupying  Power,”  said  General  Hut  in  his  letter  to  the  mayor, 
“would  bear  a  similar  challenge.  I  therefore  proposed  to  the  Governor-General  to 
fine  the  community.  The  Governor  accepted  the  proposal  and  imposed  a  fine  of 
5,000,000  marks.  The  Governor  remarked:  Tt  is  only  in  consideration  of  the  loyal 
cooperation  of  the  municipal  authorities  in  preserving  order  that  the  fine  laid  is  so 
moderate.’”  Massart  (Belgians  under  the  German  Eagle,  p.  275)  says  the  Germans 
even  went  to  the  length  of  announcing  that  the  closing  of  stores  on  the  national 
holiday  would  be  regarded  as  a  forbidden  “demonstration,”  but  this  portion  of  the 
order  they  were  unable  to  enforce  in  Brussels  or  elsewhere. 

24  The  town  of  Lierre  was  fined  57,500  francs  for  a  similar  “demonstration” 
on  the  same  day,  the  chief  offense,  it  is  alleged,  being  the  raising  of  a  Belgian  tri¬ 
color  on  the  top  of  an  oak  tree. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


517 


of  Schaerbeek  50,000  marks,  in  consequence  of  the  murder  by  an 
unknown  person  of  a  young  Belgian  in  the  latter  commune  on  the 
night  of  January  6th.25  Brussels  was  held  partly  responsible  because 
the  crime  was  alleged  to  have  been  committed  with  a  revolver  obtained 
in  that  city,  notwithstanding  the  fact  that  the  German  authorities  had, 
on  January  1st,  issued  a  proclamation  requiring  all  persons  to  deliver 
up  their  fire  arms  and  munitions  at  the  city  hall,  and  threatening  with 
the  death  penalty  those  found  with  arms  in  their  possession  after  a 
fixed  date.26  The  proclamation  also  notified  the  inhabitants  that  com¬ 
munes  in  which  such  persons  were  found  would  be  fined  10,000  marks 
for  every  offender  taken  therein. 

Numerous  towns  and  cities  were  fined  for  the  alleged  firing  by 
francs-tireurs  and  civilians  upon  German  troops  and  for  other  offenses 
against  the  occupying  authorities.  Thus  Louvain  was  fined  20,000,000 
francs  in  consequence  of  shots  alleged  to  have  been  fired  by  civilians.27 

A  levy  of  60,000,000  francs  was  made  upon  the  Province  of  Liege 
shortly  after  it  fell  under  the  occupation  of  the  Germans,  but  it  is  not 
quite  clear  whether  it  was  intended  as  a  fine  or  a  contribution.28  Sub¬ 
sequently  a  levy  of  10,000,000  francs  was  imposed  on  the  city  of  Liege 
in  consequence  of  the  alleged  firing  of  shots  from  private  houses  upon 
German  troops.  Mons  was  compelled  to  pay  100,000  francs  for  the 
firing  by  an  unknown  person  upon  a  German  soldier,  and  the  town 

25  The  murdered  Belgian  was  said  to  have  been  the  person  who  had  furnished 
the  German  authorities  with  information  which  led  to  the  arrest  and  execution  of 
Miss  Edith  Cavell,  an  English  nurse,  on  the  charge  of  assisting  English  soldiers  to 
escape  from  Belgium.  He  was,  therefore,  regarded  by  the  Belgian  people  as  a 
traitor  and  his  murder  was  apparently  brought  about  by  a  secret  society  which  had 
sworn  vengeance  against  Miss  Cavell’s  betrayer. 

26  Compare  the  following  from  a  proclamation,  issued  in  October,  1915,  by 
General  Sauberweig: 

“If,  after  October  25th,  arms  and  ammunition  are  found  in  possession  of  any 
inhabitants  those  persons  will  be  liable  to  the  death  penalty,  or  to  hard  labor  for 
at  least  ten  years,  while  the  communities  will  be  fined  up  to  10,000  francs  for  each 
case.” 

27  The  German  White  Book,  Die  Volkerrechtswidriger  Fuhrung  des  Belgischen 
Volkskriege,  p.  241  says,  however,  that  it  was  impossible  to  collect  this  fine. 

28  It  is  variously  described  in  the  press  despatches  as  a  “fine,”  a  “ contribution, ” 
and  a  “war  levy.”  It  makes  little  difference  whether  technically  it  was  a  fine  or  a 
contribution,  for  many  of  the  “fines”  imposed  by  the  Germans  were  in  fact  “con¬ 
tributions”  in  disguise. 


518 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


was  threatened  with  another  fine  in  case  a  certain  Englishman  should 
be  found  within  its  limits.29  The  town  was  threatened  with  another 
fine  in  case  any  inhabitant  should  be  found  within  its  limits  with  ben¬ 
zine  or  a  motor  cycle  in  his  possession,  and  a  similar  threat  to  fine  the 
Province  of  Hainaut  for  the  same  offense  was  made.30  In  June,  1917, 
Mons,  according  to  the  press  dispatches,  was  again  fined  500,000 
francs  because  a  Belgian  paper  published  in  Holland  stated  that 
Crown  Prince  Rupprecht  of  Bavaria  was  in  Mons  when  the  city  was 
bombarded  by  Allied  airmen.30 

Tournai  is  said  to  have  been  fined  3,000,000  francs  for  the  killing 
of  a  Uhlan.31  Merris  and  La  Gorgue  were  each  fined  50,000  francs  for 
the  firing  of  shots  at  German  troops;  the  village  of  Marson  (population 
300)  3000  francs,  and  the  commune  of  Warnelon  10,000  francs  for  the 
same  offense.32  The  commune  of  Cortemarck  was  fined  5000  marks 
on  the  pretext  that  one  of  the  inhabitants  had  committed  espionage  by 
making  signals  to  the  enemy.33  In  the  case  of  Marson,  the  Germans 
promised  “to  burn  only  a  part  of  the  village  in  the  event  the  fine  was 
duly  paid.” 

On  January  16,  1915,  the  Belgian  Legation  at  Washington  issued  a 
public  statement  charging  the  Germans  with  having  imposed  a  fine 
of  10,000,000  francs  on  the  city  of  Courtrai,  not  for  the  disobedience  of 
the  inhabitants,  but  for  obeying  the  orders  of  the  military  commander.34 

29  Massart,  Belgians  under  the  German  Eagle,  p.  147.  Proclamation  posted  at 
Mons,  November  6,  1914. 

30  Proclamation  posted  at  Mons,  Oct.  6,  1914,  Massart,  p.  147. 

300  New  York  Times,  June  8,  1917,  despatch  from  Amsterdam.  •  Were  there 
not  clearly  established  instances  of  the  imposition  of  fines  by  the  Germans  in  other 
cases  where  the  element  of  community  guilt  was  totally  lacking,  one  would  be 
inclined  to  regard  this  dispatch  as  a  joke. 

31  London  Times,  September  25,  1914. 

32  Ferrand  Des  Requisitions  en  Matiere  de  Droit  Int.  (1917),  p.  415,  and  Morgan, 
German  Atrocities,  p.  85.  Morgan  asserts  that  these  levies  were  not  fines  in  reality, 
but  “pure  extortions  levied  on  mere  pretense.” 

33  Text  of  the  notice,  in  Massart,  p.  153.  The  cure  and  the  vicar  of  the  commune 
were  held  “responsible  for  the  members  of  the  parish”  and  were  punished  by  deporta¬ 
tion  to  Germany. 

34  According  to  the  Belgian  version,  the  inhabitants  had  been  ordered  by  two 
German  officers  shortly  after  the  occupation  of  the  city  to  deliver  up  their  arms  in 
the  tower  of  Broel.  Subsequently  a  new  commander  arrived  who  charged  that  the 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


519 


For  the  cutting  of  a  telephone  wire  by  unknown  persons  at  Arlon, 
the  town  was  fined  100,000  francs  and  given  four  hours  in  which  to 
raise  the  amount,  in  default  of  which  100  houses  were  to  be  pillaged. 
Before  the  sum  was  raised  47  houses  are  alleged  to  have  been  sacked.36 
The  commune  of  Puers  was  fined  3000  francs  for  a  similar  offense.  The 
local  authorities,  however,  claimed  that  the  wire  had  not  been  cut,  but 
had  given  way  through  wear.  Other  towns  fined  on  the  charge  that 
the  telegraph  or  telephone  systems  “did  not  work  properly”  were 
Ghent,  100,000  marks;  Ledebourg,  5000  marks;  Destelbergen,  30,000 
marks;  Schellebelle,  50,000  marks;  Sweveghem,  4900  marks;  Winckel 
Sainte-Croix,  3000  marks;  and  Wachtebeke,  3000  marks.36  Seraing 
was  fined  because  a  bomb  had  burst  within  the  limits  of  the  commune, 
and  Eppeghem  was  punished  (by  a  fine  of  10,000  francs)  on  the  charge 
that  a  peasant  had  fired  a  shot  at  a  hare  or  a  pigeon.37 

A  fine  of  20,000  marks  was  imposed  on  the  town  of  Malines  for  the 
failure  of  the  mayor  to  notify  the  military  authorities  of  a  journey 
which  Cardinal  Mercier  had  made  in  violation  of  the  German  regula¬ 
tions  concerning  the  circulation  of  automobiles.38  The  same  town 
was  threatened  with  a  fine  in  case  the  authorities  did  not  furnish 
the  Germans  within  24  hours  a  list  of  the  employes  of  the  railway 
administration  in  order  that  they  might  be  requisitioned  for  labor.39 

arms  had  been  clandestinely  deposited  at  the  tower  without  instructions  from  the 
military  authorities.  The  city  was  thereupon  fined  10,000,000  francs.  Von  Mach 
(Germany’s  Point  of  View,  p.  195)  ridicules  the  Belgian  explanation,  and  defends 
the  imposition  of  the  fine  as  a  legitimate  and  humane  punishment. 

35  Reports  on  Violations  of  the  Laws  and  Customs  of  War  in  Belgium,  preface 
by  J.  Van  Den  Heuvel,  p.  xxvi;  also  p.  58;  see  also  Saint  Yves,  Les  Responsabili- 
tes  de  V Allemagne  dans  la  Guerre  de  1914,  P-  385. 

36  Massart,  p.  146,  quoting  the  Nieuwe  Rotterdamsche  Courant  of  January  30, 
1915. 

37  Massart,  pp.  147-148.  The  Belgian  accounts  charge  that  the  shot  was  in 
fact  fired  by  a  German  soldier  while  walking  in  the  country.  Hostages  were  taken 
to  insure  the  payment  of  the  fine,  but  as  there  was  no  money  in  the  communal 
treasury,  the  hostages  were  subsequently  released  and  apparently  the  fine  was 
remitted. 

38  Annex  IV  to  Cardinal  Mercier’s  address  to  the  Cardinals,  Archbishops  and 
Bishops  of  Germany,  Bavaria  and  Austria-Hungary,  published  in  a  brochure  en¬ 
titled  “An  Appeal  to  Truth,”  p.  26. 

39  The  mayor  replied  that  the  local  authorities,  not  being  charged  with  the 
administration  of  the  railways,  did  not  possess  the  information  demanded. 


520 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


Antwerp  is  said  to  have  been  fined  25,000  francs  because  an  un¬ 
known  person  altered  the  letters  in  a  public  notice  posted  by  the  Ger¬ 
mans  announcing  the  capture  of  52,000  Russians  and  400  guns,  so  as 
to  make  it  read  “ 52,000  sparrows  and  400  nuns.”  40 

The  village  of  Grenbergen  was  assessed  5000  francs  because  an 
inhabitant  allowed  his  pigeons  to  fly  in  violation  of  the  military 
regulations. 41 

On  August  22, 1914,  General  von  Nieber  imposed  a  fine  of  3,000,000 
francs  on  the  town  of  Wavre  (population  8500)  for  the  “  unqualified 
behavior,  contrary  to  the  law  of  nations  and  the  usages  of  war,  of  the 
inhabitants  in  making  a  surprise  attack  on  the  German  troops.”  The 
town  was  given  a  week  in  which  to  raise  the  amount.  In  a  letter  of 
August  27,  General  von  Nieber  informed  the  mayor  as  follows:  “I 
draw  the  attention  of  the  town  to  the  fact  that  in  no  case  can  it  count 
on  further  delay,  as  the  civil  population  has  put  itself  outside  the  law 
of  nations  by  firing  on  the  German  troops.  The  city  will  be  burned 
and  destroyed  if  the  fine  is  not  paid  in  due  time,  without  regard  for  any 
one;  the  innocent  will  suffer  with  the  guilty.”42  The  Belgian  accounts 
state  that  in  consequence  of  the  inability  of  the  town  to  raise  the 
amount  a  large  number  of  houses  were  burnt.43  Professor  Waxweiler 
affirms  that  the  civil  population  took  no  part  in  the  hostilities  and  that 
a  medical  inquiry  established  the  fact  that  the  German  soldier  who 
had  been  wounded  during  the  course  of  the  affair  received  his  wound 
from  a  German  bullet.44 

Lessines  is  alleged  to  have  been  subjected  to  a  “heavy  fine”  be¬ 
cause  the  women  of  the  town  declined  to  do  military  work  for  the 
Germans.  Other  towns  were  fined  or  otherwise  punished  for  the  refusal 
of  the  inhabitants  to  perform  what  the  Belgians  regarded  as  military 
work  or  for  attempting  to  dissuade  their  fellow  citizens  from  performing 

40  Massart,  p.  148.  41  Ibid.,  p.  147. 

42  Text  in  the  Belgian  Reports  on  Violations,  etc.,  p.  37.  See  also  Dampierre, 
VAllemagne  et  le  Droit  des  Gens ,  p.  148,  and  Saint  Yves,  op.  cit.,  p.  385.  Some  of 
the  accounts  say  the  fine  was  imposed  by  General  von  Biilow. 

43  Facts  about  Belgium,  p.  7.  Grasshoff,  a  German  writer  (The  Tragedy  of 
Belgium,  p.  173),  alleges,  however,  that  the  threat  was  not  executed  and  that  the 
city  was  spared  from  burning. 

44  Belgium,  Neutral  and  Loyal,  p.  281. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


521 


such  labor.45  Collective  fines  (10,000  francs  in  each  case)  were  also 
threatened  for  the  failure  of  the  owners  of  horses  to  bring  in  their 
animals  at  the  direction  of  German  agents  who  were  sent  to  Belgium 
to  requisition  horses  for  transportation  to  Germany.  Besides,  an  indi¬ 
vidual  fine  of  500  francs  was  do  be  imposed  upon  each  owner  who 
refused  to  comply  with  the  order.46 

‘  During  the  autumn  of  1916  many  towns  and  communes  were  fined 
in  consequence  of  the  refusal  of  the  civil  authorities  to  furnish  the 
Germans  with  lists  of  the  “unemployed”  whom  the  military  authori¬ 
ties  were  then  deporting  in  large  numbers  to  Germany  for  compulsory 
labor.  Thus,  Bruges  was  threatened  with  a  fine  of  150,000  marks  for 
each  day’s  delay  in  the  furnishing  of  such  a  list.  The  authorities  refused 
to  furnish  the  list,  and  the  fine  was  imposed  and  paid.47  Tournai, 
which  had  already  in  1914  been  fined  3,000,000  francs  for  the  killing  of 
a  German  Uhlan,  was  now  assessed  200,000  marks  for  the  refusal 
of  the  civil  authorities  to  furnish  the  Germans  with  a  list  of 
all  the  male  inhabitants  of  the  town,  and  a  further  fine  of  20,000 
marks  was  threatened  for  each  day’s  delay  in  the  furnishing  of  the 
information  demanded.48 

45  Some  instances  are  mentioned  in  my  article  in  the  January,  1917,  number  of 
this  Journal,  pp.  103  ff.  The  Belgian  Government  furnished  a  correspondent  of 
the  New  York  Times  a  facsimile  copy  of  the  following  military  notice  addressed  to 
the  population  of  the  village  of  Ledeberg,  near  Ghent: 

Ghent,  16th  December,  1915. 

To  the  Mayor  of  Ledeberg: 

The  following  is  Paragraph  4  of  the  regulations  dated  12th  October,  1915: 

It  is  forbidden  to  the  inhabitants  of  Ledeberg  parish  to  use  the  public  streets 
between  7  p.m.  and  8  a.m.  from  17th  December  till  24th  December,  1915,  inclusive. 
You  are  directed  to  inform  the  public  immediately  of  the  present  regulation. 

Furthermore,  you  are  informed  herewith  that  police  measures  and  fines  will 
follow  in  case  the  workmen  requisitioned  for  the  railway  workshops  at  Ledeberg 
persist  in  their  refusal  to  resume  work  on  account  of  the  German  military  adminis¬ 
tration. 

Commandant  d’Etape ,  Von  Wick. 

46  See  my  article  in  the  January,  1917,  number  of  this  Journal,  p.  90;  also 
Ferrand,  Des  Requisitions,  p.  437. 

47  London  Times  (weekly  ed.),  Nov.  3,  1916. 

48  New  York  Times,  November  18,  1916.  Major-General  Hoppfer,  who  im¬ 
posed  the  fine,  replied  in  a  letter  of  October  23d  to  a  resolution  of  the  municipal 
council  declining  to  furnish  the  list,  as  follows:  “The  fact  that  the  municipal 


522 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


In  some  instances  confiscations  under  the  guise  of  fines  appear  to 
have  been  imposed  on  private  individuals  of  wealth.  Thus  Baron 
Lambert  de  Rothschild  is  said  to  have  been  “ mulcted”  for  10,000,000 
francs,  and  M.  Solvay,  the  well-known  Belgian  manufacturer,  was 
compelled  to  pay  30,000,000  francs.49 

In  the  occupied  districts  of  France  the  same  policy  was  followed  by 
the  Germans,  and  many  towns  and  communes  were  fined  for  acts  alleged 
to  have  been  committed  by  the  inhabitants  against  the  authority  of  the 
occupying  forces.  Thus,  in  August,  1914,  the  commune  of  Luneville 
was  fined  650,000  francs  for  an  alleged  attack  by  certain  of  the  inhabit¬ 
ants  against  the  German  troops.60  The  French  authorities,  however, 

council  allows  itself  to  oppose  the  orders  of  the  military  authorities  in  occupied 
territory  constitutes  an  act  of  arrogance  without  precedence  and  is  an  absolute 
misunderstanding  of  the  situation  arising  from  the  state  of  war. 

“The  state  of  affairs  is  clearly  and  simply  this:  The  military  authority  com¬ 
mands  and  the  municipality  has  to  obey.  If  it  fails  to  do  this,  it  will  have  to  sup¬ 
port  the  heavy  consequences  which  I  have  already  pointed  out  in  my  previous 
explanation. 

“The  commander  of  the  army  lias  imposed  on  the  town  for  its  refusal  to  supply 
the  required  lists  a  fine  of  200,000  marks,  which  has  to  be  paid  within  the  next  six 
days,  and  he  further  adds  that  until  the  required  lists  have  been  put  at  his  disposal 
the  sum  of  20,000  marks  will  have  to  be  paid  for  every  day  of  delay.  This  will 
hold  good  until  December  31.” 

49  Sarolea,  How  Belgium  Saved  Europe,  pp.  140-1.  Sarolea  refers  to  these 
exactions  as  “fines”  without  stating  what  the  offenses  were  for  which  they  were 
laid.  Apparently  they  were  nothing  more  than  acts  of  confiscation. 

50  The  following  notice  concerning  the  fine  was  posted  by  the  German  authori¬ 
ties  throughout  the  commune: 

“On  the  25th  August,  1914,  the  inhabitants  of  Luneville  made  an  attack  by 
ambuscade  against  the  German  columns  and  transports.  On  the  same  day  the 
inhabitants  fired  on  hospital  buildings  marked  with  the  Red  Cross.  Further,  shots 
were  fired  on  the  German  wounded  and  the  military  hospital  containing  a  German 
ambulance.  On  account  of  these  acts  of  hostility  a  contribution  of  650,000  francs 
is  imposed  on  the  commune  of  Luneville.  The  mayor  is  ordered  to  pay  this  sum 
—  50,000  francs  in  silver  and  the  remainder  in  gold  —  on  the  6th  of  September  at 
9  o’clock  in  the  morning  to  the  representative  of  the  German  military  authority. 
No  protest  will  be  considered.  No  extension  of  time  will  be  granted.  If  the  com¬ 
mune  does  not  punctually  obey  the  order  to  pay  650,000  francs,  all  the  goods  which 
are  available  will  be  seized.  In  case  payment  is  not  made,  domiciliary  searches  will 
take  place  and  all  the  inhabitants  will  be  searched.  Anyone  who  shall  have  deliber¬ 
ately  hidden  money  or  shall  have  attempted  to  hide  his  goods  from  the  seizure  of 
the  military  authorities,  or  who  seeks  to  leave  the  town,  will  be  shot.  The  mayor 
and  hostages  taken  by  the  military  authorities  will  be  made  responsible  for  the 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


523 


emphatically  denied  the  truth  of  the  charge,  and  accused  the  Germans 
not  only  of  having  themselves  fired  the  shots  complained  of,  but  with 
having  also  massacred  18  inhabitants  of  the  town  and  burned  70  houses. 

Upon  the  occupation  of  Rheims,  the  Germans  levied  an  “exorbitant 
indemnity  ”  on  the  city,  but  it  is  not  clear  whether  it  was  intended  as  a 
fine  or  a  contribution.  The  amount  was  finally  cut  down  to  150,000 
francs  in  gold  and  a  quantity  of  supplies  of  the  value  of  800,000  francs. 
Hostages  were  taken  to  insure  the  payment  within  four  days  of  the 
sum  required.51 

Lille  was  fined  500,000  francs  because  the  inhabitants  made  a  dem¬ 
onstration  of  sympathy  for  a  detachment  of  French  prisoners  who 
were  being  escorted  through  the  streets  by  a  German  military  guard. 
The  city  was  allowed  one  week  in  which  to  raise  the  amount  of  the  fine.62 

The  town  of  Epernay  was  fined  176,550  francs  in  September,  1914, 
for  not  having  delivered  within  the  time  specified  certain  supplies 
which  the  German  military  authorities  had  requisitioned  for  the  use  of 
their  troops.  The  notice  of  the  fine  was  accompanied  by  a  threat  to 
“take  the  most  rigorous  proceedings  against  the  population  itself  and 
to  conduct  forcible  perquisitions  in  the  houses  of  the  inhabitants”  in 
case  the  amount  was  not  paid  on  the  following  day.  The  mayor  pro¬ 
tested  against  the  fine  on  the  ground  that  certain  of  the  supplies  re¬ 
quisitioned  (notably  12,000  kilogrammes  of  salted  bacon)  were  not  to 
be  found  in  the  town  although  he  had  used  all  his  endeavors  to  procure 
them.  The  German  authorities  could  not,  however,  be  induced  to 

exact  execution  of  the  above  order.  The  mayor  is  ordered  to  publish  these  direc¬ 
tions  to  the  commune  at  once.” 

Henamenil.  3d  September,  1914. 

Commander-in-Chief,  Von  Fasbender. 

The  text  of  this  notice  may  be  found  in  the  Report  of  the  French  Official  Commis¬ 
sion  of  Inquiry  on  Violations  of  International  Law  in  French  Territory  occupied 
by  the  Enemy,  Journal  Officiel,  January  8,  1915.  A  facsimile  reproduction  in  French 
may  be  found  in  a  collection  entitled  Scraps  of  Paper:  German  Proclamations  in 
Belgium  and  France  (p.  11),  published  by  Hodder  and  Stoughton,  London,  1917;  in 
Dampierre,  VAllemagne  et  le  Droit  des  Gens,  p.  149;  and  in  various  other  publications. 

51  Wood,  The  Note  Book  of  an  Attache,  p.  168. 

62  Press  dispatches  of  March  12,  1915.  The  Department  of  the  Nord  had 
already  been  subjected  to  a  contribution  of  15,000,000  francs,  in  addition  to  a 
monthly  contribution  of  2,000,000  francs.  About  half  of  the  burden  fell  upon  Lille. 
Lille,  Sous  le  Joug  Allemand  (Paris,  1916),  p.  4. 


524 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


relinquish  the  fine  or  reduce  the  amount,  and  an  appeal  was  made  by 
the  mayor  to  the  inhabitants  to  raise  the  sum  demanded.53  The  amount 
was  collected  and  turned  over  to  the  German  authorities  at  5  o’clock 
on  the  day  fixed. 

Erbeviller  and  other  places  were  fined  on  the  charge  that  shots  were 
fired  by  civilians  at  German  soldiers.54 

A  curious  application  of  the  German  theory  of  collective  responsi¬ 
bility  was  the  reported  imposition  of  a  fine  on  Lens  in  consequence  of 
the  bombardment  of  the  town  by  the  Entente  Allies  during  its  occupa¬ 
tion  by  the  Germans.  It  appears  from  the  news  dispatches  that  the 
punishment  was  based  on  the  assumption  that  certain  of  the  inhabitants 
must  have  been  in  communication  with  the  enemies  of  Germany  and 
induced  or  invited  the  bombardment.  Six  shells  fell  on  the  railroad 
station,  for  each  of  which  a  fine  of  3750  francs  was  imposed. 

Punishments  other  than  pecuniary  fines  were  as  in  Belgium  laid 
upon  French  towns  in  various  instances.55 

In  other  territories  occupied  by  the  Germans  the  policy  of  collec¬ 
tive  responsibility  and  punishment  was  applied  as  in  Belgium  and 
France.  Thus,  a  fine  of  50,000  rubles  (about  $25,000)  was  imposed  on 
the  inhabitants  of  the  Russian  town  of  Windau,  the  amount  being 
worked  out  by  the  inhabitants  on  the  roads,  bridges  and  farms.  Vilna 
was  fined  75,000  marks  in  consequence  of  a  fire  alleged  to  have  been 
started  by  one  of  the  inhabitants.  Soon  after  their  occupation  of 
Russian  Poland,  the  Germans,  in  retaliation  for  the  alleged  destruction 
by  Russian  troops  of  private  property  in  East  Prussia,  announced 
that  Polish  towns  occupied  by  them  would  be  heavily  fined,  and  for 
every  village  burned  by  the  Russians  in  German  territory  and  for  each 
estate  destroyed,  three  villages  or  estates  in  Russian  territory  would 
be  sacrificed  to  the  flames. 

63  Facsimile  reproduction  of  the  order  in  Scraps  of  Paper,  etc.,  p.  23;  see  also 
Matot,  Rheims  et  la  Marne,  Almanack  de  la  Guerre,  p.  169. 

54  Saint  Yves,  op.  tit.,  p.  387. 

65  Thus  the  entire  population  of  Roulers  was  compelled  to  remain  indoors  from 
2  p.m.  until  8  p.m.  every  day  for  three  weeks  because  one  of  the  inhabitants  was 
found  guilty  of  giving  food  to  Russian  prisoners  employed  by  the  Germans  at  work 
in  the  vicinity  of  the  town.  London  Times  (weekly  ed.),  June  23,  1916,  quoting 
from  the  Amsterdam  Telegraf. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


525 


Upon  their  occupation  of  Bucharest  in  December,  1916,  a  heavy 
pecuniary  imposition  was  levied  upon  the  Roumanian  capital,  and  a 
similar  exaction  amounting  to  50,000,000  francs  is  said  to  have  been 
laid  on  the  town  of  Craiova.66  In  June,  1917,  a  fine  of  250,000,000 
francs  was  imposed  in  the  occupied  territory  of  Roumania.563, 

It  is  probably  safe  to  assume  that  the  charges  against  the  Germans 
for  levying  exorbitant  fines  upon  communities,  like  many  other  charges 
made  against  them,  have  been  exaggerated,  and  that  in  some  instances 
where  pecuniary  exactions  were  actually  levied  they  were  not  intended 
as  punitive  measures,  but  were  contributions  levied  ostensibly,  at  any 
rate,  for  the  “  needs  of  the  occupying  troops.”  67  Nevertheless,  when 
reasonable  allowance  has  been  made  for  exaggeration  and  errors  of 
statement,  there  remains  sufficient  evidence  of  a  reliable  character 
to  warrant  the  conclusion  that  the  charges  are  in  the  main  true,  and 
that  a  policy  of  pecuniary  repression  has  been  carried  out  on  so  large 
a  scale  as  to  afford  some  basis  for  the  assertion  that  it  partook  of  the 
character  of  spoliation. 

We  may  now  examine  in  the  light  of  the  international  conventions, 
the  opinions  of  the  text  writers  and  the  principles  of  the  criminal  law 
the  question  of  the  legality  of  the  German  policy.  The  great  majority 
of  American,  English  and  French  writers  on  international  law  have 
condemned  as  arbitrary  and  contrary  to  the  elementary  principles  of 
justice  the  theory  of  collective  responsibility  as  it  was  applied  by  the 
Germans  in  many  instances  during  the  war  of  1870-71,  particularly 
where  it  was  applied  to  districts  other  than  those  in  which  the  offense 
was  committed,  where  the  amount  of  the  fine  was  out  of  all  proportion 

56  London  Times  (weekly  ed.),  Dec.  15,  1916.  These  levies  were  variously  de¬ 
scribed  in  the  press  dispatches  as  “contributions,”  “war  levies”  and  “fines.”  It  is 
impossible  to  determine  their  technical  character,  nor  is  this  important,  for  the 
reason  that  the  Germans  do  not  seem  to  have  observed  strictly  the  distinction 
between  fines  and  contributions. 

660  New  York  Times ,  June  26,  1917. 

67  Von  Mach  ventures  the  explanation  that  many  of  the  so-called  “indemni¬ 
ties”  levied  by  the  Germans  were  nothing  more  than  taxes  imposed  for  meeting  the 
expenses  of  the  civil  administration.  Germany’s  Point  of  View,  p.  194.  In  this 
article  I  have  made  a  conscientious  endeavor  to  avoid  confusing  fines  with  contri¬ 
butions  and  taxes,  and  with  one  or  two  exceptions  where  there  is  doubt  as  to  the 
exact  character  of  the  imposition,  I  have  dealt  only  with  fines. 


526 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


to  the  gravity  of  the  offense,  where  the  acts  complained  of  were  com¬ 
mitted  not  by  the  civil  population  but  by  the  regular  troops  of  the 
enemy,  as  appears  to  have  sometimes  been  the  case,  and  where  the 
fines  levied  were  imposed  for  the  psychological  purpose  of  inducing 
the  population  to  cease  their  resistance  and  sue  for  peace.58 

Even  a  few  German  writers,  such  as  Bluntschli,59  Geffcken,60  Loen- 
ing  61  and  apparently  Albert  Zorn,  admit  that  in  some  instances  the 

68  See,  for  example,  Bordwell,  Law  of  War,  p.  317;  Lawrence,  Principles, 
p.  448;  Spaight,  op.  tit.,  p.  408;  Westlake,  International  Law,  Vol.  II,  p.  96;  Bonfils, 
op.  tit.,  sec.  1219;  Despagnet,  op.  tit.,  sec.  589;  Ferrand,  Des  Requisitions,  pp.  239  ff.; 
Feraud-Giraud,  Des  Requisitions  Militaires,  p.  17;  Merignhac,  Les  Lois  et  Coutumes, 
sec.  106;  Nys,  Droit  Int.,  Vol.  Ill,  p.  429;  Guelle,  Precis,  Vol.  II,  p.  219;  Latifi,  op. 
tit.,  p.  34;  Pillet,  Le  Droit  de  la  Guerre,  pp.  234  ff.  See  also  Calvo,  op.  tit.,  Vol.  IV, 
sec.  2172,  and  G.  F.  DeMartens,  Traite,  Vol.  Ill,  p.  265.  Rolin  Jaequemyns,  a  Belgian 
jurist,  defends  in  general  the  German  policy  of  1870-71,  although  he  condemns  as 
unjustifiable  the  punishment  of  communes  other  than  those  in  which  offenses  were 
committed.  See  the  Revue  de  Droit  Int.  et  de  Leg.  Comp.,  Vol.  II,  pp.  666  ff.  and  Vol. 
Ill,  pp.  311  ff.  59  Droit  Int.  Cod.  (Fr.  trans.  by  Lardy),  sec.  643  bis. 

60  See  his  note  (no.  7)  to  sec.  126  of  Heffter  where  he  says  it  must  be  admitted 
that  the  Germans  went  beyond  the  necessities  of  the  war  in  holding  responsible 
distant  communes  from  which  the  offender  originally  came.  Their  action  in  com¬ 
pelling  the  municipal  authorities  to  furnish  information,  to  the  nearest  military 
commander  concerning  infractions  and  in  punishing  communes  for  giving  shelter 
to  offenders,  Geffcken  says  was  unjustifiable,  since  the  occupying  belligerent  has 
no  right  to  require  the  civil  authorities  to  act  as  agents  for  the  commanders  of  the 
invading  army. 

61  See  his  article  V Administration  du  Gouvernement-General  de  V Alsace  Durant 
la  Guerre  de  1870-71  in  the  Revue  de  Droit  Int.  et  de  Leg.  Comp.,  Vol.  V  (1873),  p.  77. 
Loening  defends  the  action  of  the  Germans  in  imposing  a  fine  equal  to  the  amount 
of  the  local  land  tax  on  districts  in  which  offenses  were  committed  against  the  safety 
of  the  German  army  by  persons  not  belonging  to  the  French  army.  The  effect  he 
says  was  “remarkable”  and  was  the  means  of  preventing  many  wrongs.  “It  there¬ 
fore  marked  a  great  progress  in  the  penal  law  of  war.”  He  also  defends  the  25  franc 
per  capita  levy  for  the  purpose  of  breaking  the  resistance  of  the  French  and  bringing 
pressure  on  them  to  sue  for  peace.  But  the  Germans  went  too  far,  he  says,  when 
they  extended  the  principle  of  collective  responsibility  to  communes  from  which 
the  offenders  came,  because  in  most  cases  there  was  no  relation  between  the  offense 
and  the  commune  punished.  The  commune  punished  in  such  cases,  he  very  properly 
adds,  possessed  no  authority  over  its  inhabitants  such  as  the  German  theory  as¬ 
sumed,  and  consequently  the  punishment  fell  upon  persons  who  not  only  took  no 
part  in  the  acts  committed  but  who  were  powerless  to  prevent  them  (p.  78).  Loe¬ 
ning  asserts,  however,  that  there  was  no  reported  instance  in  fact  in  which  such  a 
commune  was  fined;  the  German  order  was,  therefore,  only  an  unexecuted  threat, 
and  as  matters  turned  out  the  Germans  cannot  be  reproached. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


527 


German  commanders  pushed  the  theory  of  collective  responsibility  too 
far.  The  majority  of  German  writers,  however,  have  attempted  to 
justify  without  exception  the  punitive  measures  resorted  to  by  the 
German  commanders  in  1870-71.  Leuder  finds  a  justification  in  the 
embittered  character  which  the  war  took  on  in  its  later  stages  and  in 
the  determined  resistance  of  the  French  people  after  it  had  become 
evident  that  their  success  was  hopeless,62  and  this  defense  is  relied  upon 
by  the  Kriegsbrauch  im  Landkriege,  which  adds  that  experience  shows 
pecuniary  penalties  to  be  the  most  effective  means  of  insuring  the 
obedience  of  the  civil  population.63  Regarding  the  charge  that  the 
amount  of  the  fines  levied  was  excessive  in  many  instances,  Leuder 
remarks  that  the  promptness  with  which  they  were  paid  is  evidence 
enough  that  they  were  “in  truth  not  too  exorbitant.”  64  He  even  goes 
to  the  length  of  holding  that  communities  may  be  fined  for  the  con¬ 
tinued  persistence  of  the  inhabitants  in  keeping  up  a  struggle  in  which 
there  is  no  hope  of  success  ( durch  frivol  fortgesetze  Kriege).&b  The  25 
franc  per  capita  levy  for  breaking  the  resistance  of  the  French  was 
therefore  a  justifiable  measure.66 

Finally,  Leuder,  Loening  and  the  Kriegsbrauch  im  Landkriege  defend 
the  policy  of  pecuniary  penalties  as  applied  in  1870-71  on  the  ground 
that  it  was  successful  in  deterring  the  civil  population  from  persisting 
in  their  resistance  to  the  authority  of  the  enemy  —  a  very  doubtful 
justification,  because  if  the  test  of  the  legitimacy  of  an  instrument  or 
a  measure  be  merely  its  success  few  instrumentalities  or  methods 
would  be  unlawful.  Strupp  likewise  defends  the  theory  of  collective 
responsibility  in  its  extreme  form.  “The  whole  town,”  he  says,  “is 
guilty  of  the  acts  of  every  one  of  its  inhabitants.”67  But  Bluntschli, 

62  Holtzendorff,  Handbuch  des  Volkerrechts,  Vol.  IV,  p.  508;  see  also  sec.  112, 
note  14  (p.  473). 

63  Morgan,  The  War  Book  of  the  German  General  Staff,  p.  178.  Both  Leuder 

and  the  general  staff  assert  that  the  fines  levied  by  the  Germans  were  small  in  com¬ 
parison  with  the  contributions  extorted  by  Napoleon.  64  Ibid.,  p.  509. 

65  Ibid.,  p.  505.  See  Westlake’s  comment  on  this  doctrine  in  his  Collected  Papers, 
p.  251. 

66  Ibid.,  p.  510.  Lammasch  at  the  First  Hague  Conference  likewise  defended 
the  theory  that  money  contributions  may  be  levied  for  the  purpose  of  exercising 
pressure  upon  the  inhabitants  to  sue  for  peace.  Ferrand,  Des  Requisitions,  p.  229. 

67  Das  Internationale  Landkriegsrecht  (1914),  p.  248.  Compare  also  the  fol- 


528 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


very  properly,  it  would  seem,  limits  the  right  of  collective  punishment 
to  communes  and  individuals  who  facilitate  the  commission  of  crimes 
against  the  authority  of  the  occupying  belligerent,  or  who  fail  to  pre¬ 
vent  them  when  it  is  possible  to  do  so.68  Von  Liszt  also  remarks  that 
it  is  not  permissible  to  impose  collective  punishments  (except  by  way 
of  reprisal)  for  individual  acts  unless  the  totality  ( gesamtheit )  of  the 
population  is  responsible.69 

Albert  Zorn,  another  German  writer,  although  defending  in  general 
the  German  measures  of  1870-71  as  “  juristically  correct  and  therefore 
unconditionally  legal/’  nevertheless  lays  down  the  proposition  that  a 
community  may  not  be  punished  for  the  act  of  an  individual  who 
injures  a  railway,  a  bridge  or  a  telegraph  line  if  it  can  prove  that  it 
has  done  all  in  its  power  to  prevent  the  act.70  Wehberg,  to  quote  one 
more  highly  respected  German  authority,  defends  in  general  the  prin¬ 
ciple  of  community  responsibility,  but  he  limits  it  to  cases  in  which 
the  inhabitants  are  actually  responsible,  even  if  only  passively.71 

The  right  of  a  military  occupant  to  the  unqualified  obedience  of 
the  inhabitants  over  whom  his  authority  has  been  effectively  estab¬ 
lished  is  recognized  by  all  writers  on  international  law,  and  it  is  clearly 
affirmed  by  the  Hague  Convention  respecting  the  laws  and  customs  of 
war.  The  principle  has  also  long  been  recognized,  and  it  is  affirmed 
inferentially  by  the  above  mentioned  Hague  Convention  (Article  50), 
that  he  may  hold  the  entire  population  responsible  under  certain  con- 

lowing  remarks  by  Herr  Walter  Bloem  in  the  Kolnische  Zeitung  of  July  10,  1915: 
“The  innocent  must  suffer  with  the  guilty,  or,  if  the  latter  cannot  be  discovered, 
the  innocent  must  pay  the  penalty  for  the  guilty,  not  because  they  have  committed 
a  crime,  but  to  prevent  the  commission  of  crimes.  The  burning  of  a  village,  the 
execution  of  hostages,  the  decimation  of  the  inhabitants  of  a  commune  who  have 
taken  up  arms  against  the  advancing  troops,  are  less  acts  of  vengeance  than  signs 
of  warning  to  the  parts  of  the  territory  not  yet  occupied.” 

68  Op.  tit.,  sec.  643  bis.  69  Das  Volkerrecht,  p.  340. 

70  Das  Kriegsrecht  zu  Land,  p.  242.  Zorn,  like  Loening,  apparently  disapproves 
the  punishment  of  communes  other  than  those  in  which  the  offense  was  actually 
committed. 

71  Capture  in  War  (English  translation  by  Robertson),  p.  48.  Meurer  holds 
substantially  the  same  opinion.  A  community,  he  says,  cannot  be  punished  for  the 
act  of  individuals  unless  the  entire  population  is  responsible  either  in  an  active  or 
passive  sense.  Das  Kriegsrecht  der  Zweiter  Haager  Konferenz,  p.  286. 


COMMUNITY  FINES  AND  COLLECTIVE  KESPONSIBILITY 


529 


ditions  for  acts  committed  against  his  authority72  by  persons  not 
belonging  to  the  armed  forces  of  the  enemy  and  may  punish  the  com¬ 
munity  by  fines  or  otherwise  for  such  acts.  This  right,  however,  is  not 
unlimited.  It  is  subject  to  certain  well-recognized  limitations  and 
restrictions,  and  can  not  be  exercised  arbitrarily  at  the  will  of  the  com¬ 
mander.  Article  50  of  the  Hague  Convention  declares  that  “no  general 
penalty  (peine),  pecuniary  or  otherwise,  shall  be  inflicted  upon  the 
population  on  account  of  acts  of  individuals  for  which  they  can  not  be 
regarded  as  jointly  and  severally  responsible”  (solidairement  respon - 
sables).73  Unfortunately  the  convention  does  not  undertake  to  define 
the  elements  of  responsibility,  and  military  commanders  therefore  are 
left  to  judge  for  themselves  in  each  specific  case  whether  the  act  is  or 
is  not  one  for  which  the  community  could  be  properly  held  responsible. 
But  the  determination  of  the  question  of  responsibility  is  obviously 
governed  by  certain  well-established  principles,  one  of  which,  it  would 
seem,  is  that  the  community  is  not  really  responsible  unless  the  popula¬ 
tion  as  a  whole  is  a  party  to  the  offense,  either  actively  or  passively. 
If  the  act  has  been  committed  by  isolated  individuals  in  remote  parts 
of  the  community  without  the  knowledge  or  approval  of  the  public 
authorities,  or  of  the  population,  and  which  therefore  the  authorities 
could  not  have  prevented,  it  would  seem  unreasonable  and  contrary 
to  one  of  the  oldest  rules  of  the  criminal  law  to  impute  guilt  or  responsi¬ 
bility  to  the  whole  population.74  Likewise,  if  the  authorities  have 

72  There  is  a  difference  of  opinion  as  to  whether  the  right  of  punishment  is 
limited  to  offenses  in  violation  of  the  laws  and  customs  of  war.  Bordwell  (p.  316) 
thinks  it  is  so  limited,  but  Spaight  (p.  408)  holds  otherwise  and  affirms  that  it 
extends  to  all  acts  forbidden  by  the  occupying  authorities,  whether  they  are 
infractions  of  war  law  or  not. 

73  The  word  amende,  employed  in  the  Brussels  Declaration,  was  rejected  by  the 
Hague  Conference  for  the  term  peine ,  on  the  ground  that  the  use  of  the  former  term 
involved  a  confusion  of  ideas  of  the  criminal  law  with  those  of  international  law. 
See  Albert  Zorn,  op.  cit.,  p.  240,  and  Meurer,  op.  cit.,  p.  287.  The  change,  however, 
has  been  criticized  by  some  writers  because  the  word  amende,  it  is  said,  has  a  clear 
and  definite  meaning  in  international  law.  Compare  Pont,  Les  Requisitions,  p.  92, 
and  Merignhac,  Les  Lois  et  Coutumes  de  la  Guerre  sur  Terre,  p.  290. 

74  Commenting  on  Article  50,  Lawrence  (Principles  of  International  Law,  p. 
447)  remarks  that  it  allows  inferentially  pecuniary  penalties  upon  communities  when 
the  responsibility  can  be  brought  home.  “If  a  detachment  occupying  a  village,” 
he  says,  “were  slaughtered  in  the  night  while  asleep,  few  would  argue  that  the  com- 


530 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


exercised  reasonable  diligence  to  prevent  the  act  and  if  they  have 
exerted  themselves  to  discover  and  punish  the  actual  perpetrators,  it 
hardly  seems  reasonable  or  just  to  say  that  the  community  is  really 
responsible.  To  so  hold  is  to  insist  that  the  public  authorities  are 
obliged  to  guarantee  the  perfect  enforcement  of  the  law,  something 
which  no  community  has  ever  in  fact  been  able  to  do. 

Nys  remarks  that  collective  responsibility  exists  only  when  the 
offense  is  imputable  to  all  the  inhabitants,  as  in  the  case  of  public 
injuries  to  the  occupying  force,  manifestations  of  revolt  and  the  like, 
or  when  the  population  by  its  attitude  and  will  opposes  an  investiga¬ 
tion.75  Nys  even  contends  that  community  fines  may  not  be  justly 
levied  for  the  acts  of  a  few  isolated  individuals.  Such  fines,  he  says, 
may  be  imposed  only  where  the  whole  population  is  guilty  and  this 
guilt  must  be  proven  by  the  military  authorities.  He  repudiates  Loen- 
ing’s  view  that  no  obligation  rests  upon  the  military  authorities  to 
establish  the  guilt  of  the  inhabitants,  and  also  the  doctrine  of  Loening, 
Leuder  and  others  that  the  effectiveness  of  pecuniary  punishment  in 
preventing  a  repetition  of  the  acts  is  a  sufficient  justification  for  the 
resort  to  collective  penalties.76  The  purpose  of  Article  50,  as  Spaight 

munity  had  no  collective  responsibility  if  a  conspiracy  of  silence  should  baffle  all 
attempts  to  discover  the  real  perpetrators.  On  the  other  hand,  if  a  train  were  de¬ 
railed  in  the  night  while  passing  through  a  wild  ravine  far  from  human  habitation, 
it  would  be  wrong  to  hold  that  the  population  for  miles  around  could  have  known 
of  the  deed  and  have  assisted  in  it  directly  or  indirectly.” 

75  Le  Droit  International,  Vol.  Ill,  p.  429.  Compare  also  Brenet,  La  France  et 
Allemagne  devant  le  Droit  International  pendant  leurs  Operations  de  la  Guerre  1870-71, 
p.  197,  and  Westlake  (op.  cit.,  Vol.  II,  p.  106),  who  remarks  that  no  fine  is  justifiable 
except  where  the  responsibility  can  “justly  be  imputed  to  the  inhabitants.”  Com¬ 
pare  also  Rolin’s  report  on  the  subject  at  the  First  Hague  Conference,  where  it  was 
said:  “that  strictly  individual  acts  could  never  be  followed  by  collective  repression 
in  the  form  of  a  special  war  levy,  and  it  becomes  necessary  that  any  repression, 
directed  against  the  community,  should  be  founded  upon  the  more  or  less  passive 
responsibility  of  that  community.  .  .  .  The  rule  holds  good  not  only  in  respect  of 
fines,  but  for  all  penalties,  pecuniary  or  otherwise,  which  it  may  be  proposed  to 
inflict  upon  the  population  as  a  whole.” 

76  See  his  article  on  Contributions  et  Requisitions  in  the  Revue  de  Droit  Int.  et 
de  Leg.  Comp.,  Vol.  38  (1906),  p.  430.  Compare  also  Merignhac  (op.  cit.,  p.  282), 
who  contends  that  contributions  under  the  form  of  fines  can  be  levied  only  on 
offenders  and  their  accomplices,  and  that  they  are  illegal  when  they  fall  upon  inno¬ 
cent  persons,  whatever  the  motive  for  which  they  are  levied. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


531 


remarks,  was  to  confine  collective  punishment  to  such  offenses  as  the 
community  has  either  committed  or  has  allowed  to  be  committed.77 
Bonfils  interprets  the  meaning  of  the  article  in  a  similar  sense.  A  fine, 

he  says,  must  be  in  its  quantum  proportionate  to  the  gravity  of  the 

offense;  it  must  bear  only  upon  the  offender  and  his  accomplices;  it  is 
iniquitous  when  it  falls  upon  the  innocent  who  were  not  able  to  foresee 
the  act,  nor  to  prevent  it  nor  to  discover  the  offender.78 

If,  in  the  main,  the  principles  thus  laid  down  regarding  the  nature 
and  limits  of  collective  responsibility  be  admitted  as  sound,  it  is  diffi¬ 
cult  to  justify  many  of  the  impositions  levied  by  German  military  com¬ 
manders  during  the  present  war.  Again  and  again  they  have  imposed 
fines  which  would  seem  to  be  out  of  proportion  to  the  gravity  of  the 

offenses  alleged,  and  in  some  cases  quite  beyond  the  ability  of  the 

impoverished  inhabitants  to  pay.  It  has  been  asserted  that  this  was 
true  of  the  levy  of  60,000,000  francs  on  Liege  (it  matters  little  whether 
it  was  technically  a  contribution  or  a  fine)  —  a  sum  which  amounted 
to  about  300  francs  per  capita  of  the  population;  of  the  levy  of  50,000,- 
000  francs  on  Craiova,  a  town  of  only  52,000  inhabitants;  of  the  fine  of 
10,000,000  francs  on  Courtrai;  of  the  100,000  franc  fine  on  Mons;  of 
the  fine  of  3,000,000  francs  on  Tournai;  of  the  fine  of  3,000,000  francs 
on  the  village  of  Wavre;  and  various  others.  In  a  number  of  instances 
it  must  also  be  remembered  that  these  impositions  were  in  addition  to 
other  heavy  exactions  in  the  form  of  requisitions,  contributions  and 
tax  levies.  Sometimes  the  offenses  alleged  were  inconsequential  acts 
committed  by  isolated  individuals  and  involving  no  military  injury  or 
evidence  of  organized  hostility  to  the  authority  of  the  occupying  forces. 
Some  of  them,  indeed,  were  so  obviously  mere  pretexts  that  the  exac¬ 
tions  imposed  were,  as  has  been  said,  nothing  more  than  contributions 
under  the  guise  of  fines.  Some  writers  hold,  and  very  properly,  that 
such  impositions  do  not  differ  from  pillage,  except  in  name,  and  are 
therefore  forbidden  by  international  law.79 

77  Op.  tit.,  p.  408. 

78  Op.  tit.,  sec.  1218.  To  the  same  effect  see  also  Despagnet,  op.  tit.,  secs.  587- 
588;  Feraud-Giraud,  op.  tit.,  p.  17,  and  Bordwell,  op.  tit.,  p.  317,  who  remarks  that 
collective  punishment  is  permissible  only  when  the  community  could  and  should 
have  prevented  the  act. 

79  Compare  Latifi,  Effects  of  War  on  Property,  p.  34,  and  Bluntschli,  Droit 

Cod.,  sec.  654. 


532 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


In  other  cases  the  fines  imposed  can  be  justified  only  on  a  theory  of 
collective  responsibility  which  is  rejected  by  the  great  majority  of 
writers  and  which  hardly  seems  in  accord  with  reason  or  justice.  Such 
a  case  was  the  fine  of  5,000,000  francs  on  Brussels  for  the  act  of  a  police 
constable.  The  affair  was  one  of  which  the  population  had  no  knowl¬ 
edge;  they  were  neither  active  nor  passive  accomplices;  nor  was  the 
act  one  which  the  authorities  could  have  prevented,  because  they 
could  not  have  foreseen  it.  It  was  an  isolated  individual  offense  and 
the  offender  was  promptly  arrested  by  the  German  authorities  and 
punished  by  a  term  of  imprisonment.  It  is  difficult  to  understand 
the  process  of  reasoning  by  which  responsibility  for  an  act  of  this  kind 
could  be  imputed  to  the  whole  population.  The  fine  was  therefore 
nothing  more  than  a  contribution  in  disguise  and  involved  no  ques¬ 
tion  of  community  responsibility. 

Likewise,  it  is  difficult  to  justify  the  second  fine  of  5,000,000  francs 
imposed  on  Brussels  for  the  destruction  of  a  Zeppelin.  If  the  act  was 
committed  by  a  person  belonging  to  the  Belgian  military  forces,  it  was 
a  lawful  belligerent  act  for  which  the  community  was  not  liable  to 
punishment;  if  it  was  done  by  a  civilian,  responsibility  could  not  be 
imputed  to  the  whole  population,  unless  it  was  established  that  they 
were  accomplices,  which  was  probably  not  the  case.  In  any  event,  the 
amount  of  the  fine  in  both  cases  would  seem  to  have  been  out  of  pro¬ 
portion  to  the  gravity  of  the  offense.  The  legality  of  the  third  fine  of 
5,000,000  francs  laid  on  Brussels  in  consequence  of  the  popular  demon¬ 
stration  on  the  national  holiday  has  been  denied  by  the  Belgian  writers 
on  the  ground  that  a  military  occupant  has  no  lawful  right  to  repress 
by  huge  fines  the  manifestation  by  the  inhabitants  of  their  patriotic 
sentiments.  It  can  hardly  be  contended,  however,  that  if  acts  of  this 
kind  amount  in  fact  to  open  manifestations  of  hostility  toward  the 
occupying  Power,  or  if  they  are  accompanied  by  public  disorders,  they 
may  not  be  repressed  or  punished  by  means  of  fines.  On  the  other  hand, 
if  as  the  Belgians  allege  to  have  been  true  in  this  case,  the  demonstra¬ 
tions  were  peaceable,  and  consisted  merely  of  processions  and  the  carrying 
of  flags  and  that  no  manifestations  of  hostility  took  place,  the  imposi¬ 
tion  of  the  fine  is  less  defensible,  if  it  can  be  defended  at  all.  Cer¬ 
tainly,  the  imposition  of  a  heavy  fine  on  the  town  of  Lierre  for  the 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


533 


hoisting  of  the  Belgian  flag  on  a  tree,  if  as  the  Belgians  allege,  the  act 
was  unaccompanied  by  manifestations  of  hostility  or  the  spirit  of  revolt, 
strikes  one  as  being  a  species  of  petty  tyranny  of  the  same  kind  as  the 
act  of  the  Federal  commander  who  at  Natchez  in  1864  banished  a  local 
preacher  for  refusing  to  pray  for  the  President  of  the  United  States.80 
The  same  judgment  may  be  passed  upon  the  act  of  the  German  com¬ 
mander  who  fined  the  city  of  Lille  for  the  demonstrations  of  sympathy 
by  some  of  the  inhabitants  for  their  unhappy  fellow  countrymen  who 
were  being  escorted  as  prisoners  through  the  streets.  No  acts  of  hos¬ 
tility  were  charged,  no  disorders  appear  to  have  been  committed  and 
no  injury  was  done  to  the  authority  of  the  occupying  forces. 

The  500,000  franc  fine  levied  on  Brussels  in  consequence  of  the 
crime  of  murder  by  an  unknown  person  in  the  suburb  of  Schaerbeek 
—  this  on  the  assumption  that  the  weapon  used  had  been  procured  in 
Brussels  where  the  possession  of  firearms  by  the  inhabitants  had  been 
forbidden  by  the  military  authorities  —  certainly  involved  a  wide 
extension  of  the  theory  of  collective  responsibility.  The  local  civil 
authorities  had  issued  a  proclamation  urging  the  people  to  bring  in 
their  firearms  and  deposit  them  at  the  city  hall  and  warning  them  of 
the  severe  penalties  to  which  they  were  liable  in  case  of  non-compliance 
with  the  orders  of  the  military  authorities.  If  the  civil  authorities  did 
all  in  their  power  to  insure  compliance  with  the  German  military  regula¬ 
tions  and  also  exerted  themselves  to  discover  the  offender,  as  they  claim 
to  have  done,  it  may  be  seriously  doubted  whether  under  any  reason¬ 
able  or  just  interpretation  of  the  rule  as  to  collective  responsibility  either 
guilt  or  responsibility  could  be  imputed  to  the  whole  population.  In 
any  case,  one  is  tempted  to  inquire  why  the  responsibility  for  enfor¬ 
cing  the  orders  of  a  military  occupant  should  be  placed  on  the  civil 
authorities.  The  Hague  Convention  in  fact  imposes  upon  the  occupy¬ 
ing  authority  the  duty  of  maintaining  order;  his  authority  in  the  occu¬ 
pied  district  is  supreme;  he  has  full  control  of  the  local  administrative 
and  judicial  machinery;  he  may  alter  the  criminal  law  and  increase 
its  severity  in  order  to  repress  acts  against  his  authority;  he  may 
establish  special  tribunals  to  enforce  the  law ;  and  he  has  at  his  disposal 
his  own  armed  forces.  In  view  of  these  facts,  it  is  a  fair  question  to 

80  As  to  the  facts  of  this  case  see  Garner,  Reconstruction  in  Mississippi,  p.  37. 


534 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


raise  whether  he  has  any  legal  or  moral  right  to'  shift  the  responsibility 
for  the  enforcement  of  his  orders  to  the  shoulders  of  the  civil  au¬ 
thorities  and  hold  them  responsible  for  infractions  which  neither  he 
nor  they  can  prevent. 

The  imposition  by  the  German  officers  in  numerous  instances  of 
fines  for  the  acts  of  unknown  individuals  in  cutting  telegraph  and  tele¬ 
phone  wires,  for  firing  upon  German  troops,  for  committing  injury  to 
bridges  and  lines  of  communications,  and  for  other  similar  acts,  would 
seem  to  be  defensible  only  on  the  assumption  that  the  mass  of  the 
population  were  accomplices,  or  at  least  approved  the  acts,  and  that  the 
civil  authorities  could  have  prevented  them  had  they  desired  to  do  so — an 
assumption  which  in  the  majority  of  cases  was  probably  unwarranted. 

The  fine  levied  on  Malines  for  the  neglect  of  the  mayor  to  notify 
the  military  authorities  of  Cardinal  Mercier’s  journey  in  violation  of 
the  traffic  regulations,  seems  to  have  been  based  on  a  curious  interpre¬ 
tation  of  the  theory  of  collective  responsibility,  and  it  is  difficult  to 
understand  the  reasoning  by  which  the  responsibility  for  His  Emi¬ 
nence’s  conduct  was  imputed  to  the  entire  population.  If  any  one, 
other  than  the  Cardinal  himself,  was  responsible,  it  was  the  mayor, 
and  it  would  seem  that  either  he  or  the  Cardinal  and  they  alone  were 
the  proper  persons  to  punish. 

The  same  thing  may  be  said  of  the  punishment  of  various  towns  and 
cities  for  the  refusal  of  the  municipal  authorities  to  furnish  the  Germans 
with  the  names  of  unemployed  persons  and  with  lists  of  the  local  rail¬ 
way  employees.  It  was  they  and  not  the  population  who  refused  to 
comply  with  the  orders  of  the  occupying  belligerent,  and  it  would  seem 
that  they  were  the  proper  persons  to  punish.  The  imposition  of  collect¬ 
ive  fines  in  these  and  other  similar  cases  cannot  be  justified  on  any 
reasonable  theory  of  community  responsibility;  they  were  in  fact 
nothing  more  than  contributions  levied  under  the  pretext  of  punitive 
measures  and  for  the  enrichment  of  the  military  occupant.  The  fining 
of  Epernay  for  the  inability  of  the  civil  authorities  to  comply  with  the 
demand  of  the  military  authorities  for  a  quantity  of  salted  bacon,  if 
the  assertion  of  the  civil  authorities  be  true,  that  no  such  supplies  were 
available  in  the  town,  was  wholly  indefensible;  if  the  facts  were  other¬ 
wise,  the  punishment  was  of  course  a  justifiable  measure. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


535 


Both  the  Belgian  and  French  authorities  charge  the  Germans  with 
imposing  community  fines  in  various  instances  for  acts  which  were 
committed,  not  by  the  civil  population,  but  by  persons  belonging  to 
the  regular  armed  forces  and  which  were  therefore  legitimate  acts 
of  war  for  which  the  community  was  not  liable  to  punishment.  It  is 
impossible  to  establish  the  truth  of  this  charge,  although  there  is  good 
reason  for  believing  that  the  Germans,  as  in  1870-71,  went  too  far  in 
treating  injuries  to  their  communications  and  other  similar  acts  when 
done  by  detached  bodies  of  troops  as  the  acts  of  francs-tireurs  and, 
therefore,  not  permissible  by  the  laws  of  war.  There  can  be  little  doubt 
that  the  German  franc-tireur  doctrine  has  been  over-exploited  and  too 
often  invoked  as  a  justification  for  severities  against  the  civil  population 
for  acts  which  were  committed  by  persons  belonging  to  the  regularly 
organized  armed  forces. 

On  the  whole,  the  evidence  regarding  German  practice  in  respect 
to  the  imposition  of  pecuniary  penalties  on  the  civil  population  of 
occupied  districts  during  the  present  war  justifies  the  conclusion  that 
their  policy  was  based  on  a  theory  of  collective  responsibility  which  is 
neither  in  accord  with  the  well  established  principles  of  modern  crimi¬ 
nal  law  nor  with  the  interpretation  of  Article  50  of  the  Hague  Conven¬ 
tion  which  has  been  given  it  by  the  great  majority  of  recent  writers 
on  international  law,  including  even  many  of  those  of  German  nation¬ 
ality.  Unfortunately,  the  theory  of  collective  responsibility,  even  when 
applied  in  its  mildest  form,  necessarily  involves  the  punishment  of 
innocent  persons,  and  for  this  reason  it  ought  never  be  resorted  to 
when  other  more  just  measures  would  accomplish  the  same  end,  and 
in  no  case  unless  an  active  or  passive  responsibility  can  really  be  im¬ 
puted  to  the  mass  of  the  population,  or  where  the  civil  authorities 
have  failed  to  exercise  reasonable  diligence  to  prevent  infractions  or  to 
discover  and  punish  the  actual  offender  in  case  they  have  been  unable  to 
prevent  the  offenses.  Some  writers  hold  that  collective  punishments 
ought  never  be  resorted  to  except  as  a  measure  of  reprisal,  while  others, 
like  Bonfils  and  G.  F.  de  Martens,  condemn  the  whole  theory  and  ex¬ 
press  the  hope  that  it  will  ultimately  disappear  entirely  from  warfare.81 

81  Bonfils,  Droit  Int.,  pub.  sec.  1224,  and  G.  F.  de  Martens,  Traite  de  Droit  Int.y 
Vol.  Ill,  p.  265.  Compare  also  Rouard  de  Card,  p.  178. 


536 


THE  AMERICAN  JOURNAL  OF  INTERNATIONAL  LAW 


As  the  Germans  have  learned,  however,  it  is  a  measure  which  is 
both  easy  of  enforcement  and  is  generally  effective  in  deterring  the 
civil  population  from  committing  infractions  against  the  authority  of 
the  occupying  forces,  and  these  circumstances  have  accentuated  the 
temptation  to  abuse  the  right  and  to  extend  it  to  cases  to  which  it  can 
not  be  applied,  except  upon  an  interpretation  which  can  hardly  be 
reconciled  with  reason  or  the  generally  recognized  principles  of  crimi¬ 
nal  justice.  It  was  just  because  of  its  effectiveness  that  Leuder,  Loen- 
ing  and  other  German  writers  have  sought  to  justify  the  wide  extension 
of  the  theory  and  its  use  on  a  large  scale  in  the  war  of  1870-71.  There 
is  no  difficulty  in  justifying  such  a  policy,  if  one  only  accepts  the  Ger¬ 
man  doctrine  that  the  test  of  the  legitimacy  of  an  instrument  or  a 
measure  is  its  effectiveness,  that  is,  whether  its  employment  contrib¬ 
utes  to  the  attainment  of  the  object  of  the  war.82 

However  strongly  we  may  condemn  the  general  policy  of  the  Ger¬ 
mans  in  respect  to  the  imposition  of  collective  penalties  during  the 
present  war,  it  would  be  going  too  far  to  assert  that  the  conduct  of  the 
civil  population  of  the  districts  occupied  by  the  German  forces  was 
always  irreproachable.  It  is  difficult  for  an  American  on  the  basis  of  the 
information  now  available  to  reach  a  definite  conclusion  as  to  the 
truth  or  falsity  of  the  various  charges  and  countercharges,  but  it  is 
fair  to  assume  that  in  some  instances  the  imposition  of  fines  was  not 

82  See,  for  example,  the  Kriegsbrauch  im  Landkriege  (trans.  by  Morgan),  pp.  69, 
84,  85;  Leuder  in  Holtzendorff,  Vol.  IV,  sec.  96;  Von  Hartmann,  Militdrische  Noth- 
wendigkeit  und  Humanitat  in  the  Deutsche  Rundschau ,  Vol.  XIII,  pp.  119  ff.  and  Vol. 
XIV,  pp.  117  fT.  and  von  Clausewitz  on  War  (Eng.  trans.  by  Graham,  Ch.  II).  See  also 
the  views  of  Field  Marshal  Prince  Schwarzenberg  quoted  in  the  Continental  Times 
of  September  17,  1915.  There  is  little  German  literature  dealing  with  the  levying 
of  collective  penalties  during  the  present  war  which  is  yet  available  in  America. 
Meurer’s  monograph  entitled  Die  volkerrechtliche  Stellung  der  vom  Fiend  besetzien 
Gebiete  (1915)  contains  a  brief  general  defense  of  the  German  policy,  and  Albert 
Zorn  in  his  Kriegsrecht  zu  Land  (1915)  apparently  finds  nothing  for  which  the 
Germans  may  justly  be  reproached.  It  is  a  little  singular  that  the  German  White 
Book,  the  Belgian  Peoples’  War,  which  contains  an  elaborate  defense  of  many  of 
the  charges  that  have  been  made  against  the  Germans  in  Belgium,  gives  no  atten¬ 
tion  to  the  subject  of  contributions,  requisitions  or  fines.  Likewise  Stier-Somlo, 
in  a  long  article  dealing  with  international  law  in  the  territories  occupied  by  the 
German  forces  (Zeitschrift  fiir  V olkerrecht,  Vol.  VIII  (1914),  pp.  581-608,  ignores  the 
Belgian  charges  that  the  Germans  were  guilty  of  a  policy  of  wholesale  spoliation 
under  the  form  of  contributions,  requisitions,  and  collective  fines. 


COMMUNITY  FINES  AND  COLLECTIVE  RESPONSIBILITY 


537 


unjustified,  if  we  accept  the  theory  of  collective  responsibility  in  any 
form.  Nevertheless,  it  may  be  said,  by  way  of  extenuation  of  the 
conduct  of  the  Belgians,  where  they  were  really  guilty  of  committing 
offenses  against  the  authority  of  the  occupying  forces,  that  the  provoca¬ 
tion  under  which  they  acted  was  extremely  great.  They  were  the 
innocent  victims  of  an  unjust  invasion;  they  were  expected  to  remain 
silent  spectators  while  their  land  was  ravaged  and  their  countrymen 
put  to  death  in  large  numbers  without  cause,  as  they  believed;  to  all 
this  and  more  they  were  required  to  submit  absolutely  under  the 
severest  penalties.  That  they  should  have  at  times  overstepped  the 
hard  limits  which  were  thus  set  to  their  conduct  by  a  ruthless  military 
conqueror  is  to  have  been  expected.  These  extenuating  circumstances 
the  Germans  might  well  have  taken  into  account,  and  where  real  mili¬ 
tary  necessity  required  the  infliction  of  punishment  in  the  form  of 
pecuniary  exactions,  more  regard  might  have  been  had  to  the  impover¬ 
ished  condition  of  the  inhabitants  and  their  inability  to  raise  exorbi¬ 
tant  sums  of  money.  Measures  of  such  severity  as  those  to  which  the 
Germans  had  recourse  in  many  instances  are  always  of  doubtful  ex¬ 
pediency  in  the  end,  because  instead  of  subserving  a  real  military 
necessity  they  only  tend  to  drive  the  population  to  desperation,  to 
arouse  an  undying  hatred  against  the  occupying  belligerent,  to  intensify 
the  spirit  of  revenge,  and  finally  to  make  it  more  difficult  to  overcome 
effectively  the  resistance  of  the  people  who  are  made  the  victims  of 
such  severities. 


James  W.  Garner. 


UNIVERSITY  of  ILLINOIS- 


